FBI says, “I’m going to do whatever I want and you can’t say a word or else!” in the form of “National Security Letters”. Giving the federal government unlimited power and then letting them restrict anyone from saying anything about it. This is an inherently bad plan. The Bill of Rights was specifically designed to protect citizens from these kinds abuses.
Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional infringement on free speech, a federal judge in California ruled in a decision released Friday.
U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.
“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”
The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.
Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.
After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, claiming in court documents that the company was violating the law by challenging its authority.
The move stunned EFF at the time.
“It’s a huge deal to say you are in violation of federal law having to do with a national security investigation,” Zimmerman told Wired last year. “That is extraordinarily aggressive from my standpoint. They’re saying you are violating the law by challenging our authority here.”
The case is a significant challenge to the government and its efforts to obtain documents in a manner that the EFF says violates the First Amendment rights of free speech and association.
In her ruling, Judge Illston agreed, saying that the NSL nondisclosure provisions “significantly infringe on speech regarding controversial government powers.”
She noted that the telecom had been “adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate” on the government’s use of the letters.
She also said that the review process for challenging an order violated the separation of powers. Because these provisions cannot be separated from the rest of the statute, Illston ruled that the entire statute was unconstitutional.
Read more FBI’s “National Security Letters” with Gag Orders Restrict Freedom of Speech says Judge